Protecting attorney work product in internal investigations: A cautionary tale

On May 1, 2020, the D.C. Circuit denied RPM International's petition for a writ of mandamus to vacate a district court order compelling disclosure of interview memoranda prepared by outside counsel to the Securities and Exchange Commission (SEC). The district court found that the memoranda were not protected by the attorney work product doctrine because they were not prepared in anticipation of litigation. Since a writ of mandamus "is a drastic and extraordinary remedy reserved for really extraordinary causes"; it is hardly surprising that the D.C. Circuit denied RPM's petition. Its brief order, however, is a missed opportunity to provide guidance in an area of law fraught with uncertainty.

In this alert, we discuss the attorney work product doctrine, and, while there is no foolproof way to preserve attorney work product generated during an internal investigation when sharing information with independent auditors, we outline steps companies can take—particularly before an investigation begins—to minimize the risk of being ordered to disclose work product in future government investigations or litigation.

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